Navigating the Complexities of Divorce: A Comprehensive Guide

 

Going through a divorce is not a pleasant experience and can be a low point in the lives of many. For many individuals, divorce may be the best option to rebuild their lives afresh, away from negativities and toxicity. Getting a divorce is the final chapter in the marriage to work out the fair division of assets and continuous sharing of responsibilities to their children.

 

Knowing the divorce process can help alleviate some of this burden by giving you concrete steps to take and showing you the documents and administrative duties you need to prepare for. 

 

This article intends to give you a comprehensive understanding of the entire process to allow you to make the necessary decisions and steps. Making sure that you know the options available to you also helps to make sure that you do not get shortchanged or blindsided in the process of sorting out your new life. 

 

Understanding a Divorce

The court grants a divorce when it finds that a marriage has irretrievably broken down, and this signals the legal end of a marriage. 

 

It is not a couple’s choice to determine whether their divorces are classified as uncontested or contested. To call a divorce uncontested, parties must work out a full agreement and it involves many nights of discussions and negotiations. Full agreement does not come out of the blue!

 

The uncontested route refers to a scenario where both parties agree on getting a divorce, including the reasons and all related matters, including custody, care, control and access of children, children’s maintenance (if relevant), maintenance to wife (or S$0 or S$1 or other amounts) and division of matrimonial assets. 

While it is possible to get a divorce without a lawyer, the paperwork and administrative hassle can add to the already high level of stress you are undergoing. Additionally, any errors or missing information will eventually result in you incurring additional costs as you will need to rectify and re-file for a divorce. 

To guide you through this process and have one less thing to worry about, hiring an experienced divorce lawyer can give you peace of mind that you know what you are getting into.

Eligibility for Divorce

To obtain a divorce in Singapore, you or your spouse must be Singapore Citizens or must have at least lived in Singapore for three years preceding the filing of the divorce application to demonstrate that parties consider this their home. 

Additionally, you or your spouse must have been married for a period of at least three years to be eligible to apply for a divorce. This is different from being separated for three years. 

However, in exceptional circumstances, where the parties wish to file for divorce before the three-year mark, the court can make exceptions subject to its approval, such as in a situation where one can prove to the court that one has suffered exceptional hardship or deprivation like multiple adulteries, or grievous and continuous bodily harm inflicted on a spouse.

Proving the Marriage has Broken Down Irretrievably

In Singapore, there are five grounds of divorce that can help to prove that a marriage has broken down;

1. Adultery
2. Unreasonable behaviour
3. Desertion
4. 3 years’ separation 
5. 4 years’ separation with consent

 

Adultery

If a party is to use adultery to prove the ground for divorce, the party must prove with irrefutable evidence that their spouse has been engaging in extramarital affair and that the adulterous pair has engaged in sex. 

To assist in obtaining such evidence, you can hire a private investigator to obtain video evidence of the act, photographs in suggestive poses, or phone conversations regarding the matter. However, it is always prudent for the divorcing party to speak to an experienced divorce lawyer first before you incur the fees for private investigator which usually range from S$500 and above.

You must also find it intolerable to live with your adulterous spouse. The law prohibits you from using adultery as the reason if you continue living with your adulterous spouse for more than six (6) months after you discovered the adultery/extra-marital affair. Still, you may use other reasons like unreasonable behaviour.

 

Unreasonable Behaviour 

When your spouse’s conduct makes it relatively hard for you to live together with your spouse, you can rely on your spouse’s certain behavior that he/she has behaved in such a way that you can no longer live with him/her as a ground for divorce. 

The court considers what constitutes behavior that makes it intolerable for you to continue to live with him/her, and there are no clear metrics for this. Although an experience divorce lawyer may be able to advise you what is acceptable to the courts. You need not have harsh allegations against your spouse to qualify for divorce under unreasonable behavior. Some examples include domestic violence, emotional abuse, neglect, talking down, laziness and compulsive gambling that causes financial detriment to the aggrieved spouse. Less serious acts repeated over a long period of time can also qualify for divorce under unreasonable behaviour. 

However, it is worth noting that the divorce paper, i.e. Statement of Particulars must still contain sufficient facts and a certain level of allegations against your spouse in order for the judge to grant a divorce. An experienced divorce lawyer, who is a wordsmith in legal writing may write such a statement with finesse to be able to obtain court’s approval. Certainly, there is nothing like a filing party having little or nothing to write about your spouse’s conduct, the experienced lawyer will guide you on the fact-finding and composition of the statement.

 

Desertion

If your spouse has gone missing for a continuous period of at least two years with the intention to bring the matrimonial union to an end without your knowledge and without your consent, you can rely on desertion as the ground for divorce. Nevertheless, desertion does not include circumstances when your spouse has to work overseas for an extended period of time or if there has been an agreement that the parties will be separated for a period of time. For desertion to be proven, the aggrieved spouse must have been abandoned with no consent. You have to show that the missing spouse has evinced a clear intention to abandon the family.

 

Separation

Proving separation of at least three (3) years with both parties agreeing to the divorce or parties having lived apart for at least four (4) years is the best option for a non-contested divorce. However, this separation must be factual and not made-up for the purpose of divorce. If any party lies in court, it will be regarded as contempt of court, resulting in penalties such as a fine and/or jail term.

Beyond physical separation, parties have to show that they no longer perform any spousal duties or make any claims with their spouse during the period of separation. Prior to divorce based on separation as the reason for divorce, parties can enter into a deed of separation to clarify the management of their matrimonial assets during the time apart and upon divorce and to state their intention to live separately. 

 

The Divorce Process

The one filing the divorce application to the court is the plaintiff, while the spouse is the defendant.

 

Preparing Relevant Documents

Prepare the following documents when filing the divorce papers to the Court, such as writ for divorce, statement of claim, statement of particulars, memorandum of appearance, acknowledgment of service, proposed parenting plan (if the married couple have children below the age of 21), certification of completion for the mandatory co-parenting programme (CPP) conducted by MSF (if the married couple have children below the age of 21), and the proposed matrimonial property plan if the married couple possess a HDB flat.

Initially, MPP was started by MSF around December 2016 with the hope that an individual contemplating divorce would know the financial implications and effects it would have on their children. It has since been replaced with the Mandatory Co-Parenting Programme (CPP) which includes an e-learning section and a consultation with a counsellor. 

However, such programmes may not achieve their desired outcome as parties involved in a marriage that has suffered a complete breakdown may not look to restore their relationship despite the program.

Filing for Divorce

In the event that you have a divorce lawyer representing you, the law firm representing you will be responsible for submitting your divorce documents by advising you on the law and assisting you to prepare the necessary documents and filing the documents through eLitigation. 

 

Serving the Divorce Papers

Once your divorce application is approved by the court, your lawyers will assist you with the next steps:

1. Invite the defendant to attend at the law firm to discuss a settlement. This step is essential if parties wish to seek a settlement to the matter as early as possible. But if the defendant is not willing to discuss the terms out of court, the plaintiff will have to follow the court procedure of serving the papers to the defendant;
2. the divorce papers will be served to the defendant personally by way of delivering the papers to the defendant’s home or office. If the defendant has engaged a lawyer, the papers will be served to his lawyers via eLitigation;
3. if the Defendant cannot be found or refuses to respond despite being able to respond, you have to commence application for Substituted Service/Dispensation of Service on the defendant;
4. Once the Writ and the relevant divorce documents have been served to the defendant, procedurally the defendant or his/her lawyer will have eight (8) days to respond by indicating in the Memorandum of Appearance whether he/she wishes to contest the divorce and/or ancillary matters;
5. If the defendant fails or refuses to respond, the court deadline will not stop for him/her;
6. If the Defendant wishes to dispute, he/she has to file a defence and/or counterclaim within 22 days of receiving the Writ. He/she then has to attend the CPP course, and to prepare and file the defendant’s Proposed Parenting Plan (or Agreement), the defendant’s Proposed Matrimonial Property Plan (or Agreement).

At this time if parties cannot reach a full settlement to the divorce and the ancillary terms, you may discuss with your lawyer to commence one of the following dispute resolution methods:-

1. Exchanges of settlement proposals; and/or
2. Without prejudice meeting with parties and respective lawyers; and/or
3. Private mediation (fees to be paid separately to the private mediation centres); or
4. Optional to attend court mediation before a judge mediator at the CFRC mediation centre (under Family Justice Courts); or
5. However, if the marriage has children below the age of 21 years old, it is compulsory to attend compulsory CFRC counselling with court counsellors and CFRC mediation with judge mediator.

 

Interim Judgment for Divorce

If the Defendant chooses not to contest the divorce and accepts your statement, the Family Justice Courts will grant the Interim Judgment for Divorce if the Defendant chooses to agree to the divorce. The timeline is usually one (1) month from the date of filing the Memorandum of Appearance indicating that the Defendant does not wish to defend the action.

Or in another situation where the Defendant files his counterclaim against you and you accept the counterclaim, the court will grant an Interim Judgment for Divorce.

At this point, if parties still have not come to a full agreement on the ancillary matters after the interim judgment for divorce is granted, the case will then move to the ancillary matters stage of divorce proceedings.

Ancillary Matters

Ancillary matters refer to the custody, care and control of the children, matrimonial property, matrimonial assets, children and spousal maintenance and other matters. If both parties could reach an agreement on all the ancillary terms, the court may grant the consent order based on parties’ agreement. However, before you agree to the terms, it is wise to seek proper legal advice from experienced divorce lawyers to understand the pros and cons and the effect of the terms. 

After another compulsory wait of three (3) months, your Certificate of Final Judgment for Divorce i.e. Certificate for Divorce that finalises the divorce proceedings can be extracted. You are officially divorced at this point.

However, if there is no agreement reached for the ancillary matters, the following procedures follow:

 

1. both parties will need to file and exchange his/her Affidavit of Assets and Means (AOM) which will include relevant financial documents, like bank statements, CPF records, employment contracts, monthly expenses, and tenancy agreements amongst other things;
2. The parties are also required to file his/her reply affidavit. If the situation deems it required, you will need to file the application for Request for Discovery/Interrogatories and you shall seek your divorce lawyer’s advice with respect to this;
3. At the ancillary matters hearing, the court will hear both parties’ legal and factual submissions and decide on a fair order. Once the Court makes a decision on the ancillary terms, the Court will issue an Order of Court;
4. Thereafter, the Certificate of Final Judgment i.e. the divorce certificate which concludes the divorce proceedings can be extracted. If any party feels dissatisfied with the order, they can file a notice of appeal.

 

Understanding Child Custody

To work out matters regarding children during a divorce needs empathy and proper management to allow the children to transition into a post-divorce family setting. The long-term arrangement must be workable and satisfactory to both parties and the children. It cannot be dictated by one parent. 

Child custody refers to long-term major life decisions with respect to the child. The options for custody include:

• Sole Custody: Where one parent is the sole decision-maker on major issues relating to the child’s life. For example, the child’s medical care and which primary school to attend. 
• Joint Custody: Both parents to mutually decide on the child’s major issues.
• Hybrid: Where parties are granted joint custody but certain issues relating to the child to be decided by one competent parent.

The court will make the custodial decision by relying on the welfare principle wherein the best interests of the child form the first and paramount consideration. The court considers the child’s welfare, including the child’s wishes, who is the primary caregiver, living arrangements, finances, and support. A parent’s better financial status or preference to take the child will not guarantee custody.

 

Deciding Care and Control of Child

The custody of the child does not determine who will be the primary caregiver of the child. 

The care and control order determines which party takes care of the daily life of the child. In most cases, the mother of a very young child is given the care and control of the child in Singapore whereas the visiting parent usually has equal and reasonable access to the child. Parties may work out what constitutes equal timing to be spent with the child, failing which, the court will decide for the parents. 

 

Division of Marital Assets

If the parties cannot come to an agreement with respect to the division of their matrimonial assets, the court will consider the following factors when dividing the assets;

1. What is considered matrimonial assets;
2. The extent of financial contribution to the assets;
3. The extent of non-financial contribution to the family;
4. The needs of the children;
5. Prior agreements between the parties by a deed, prenuptial agreement or other agreements;
6. Financial needs of each party;
7. This list is not exhaustive. 

 

Building a new life after divorce

A divorce proceeding could assist you in cutting off from a toxic family.

Coupled with a court order stating exactly parties’ respective entitlement to the matrimonial house, assets, and the arrangement for the child(ren), the administrative work after divorce may be taxing. For example, when one ex-spouse refuses to move out of the matrimonial home, or refusal to pay the required ordered maintenance amount. If such a situation occurs, it is essential to seek further legal advice on the enforcement or performance of the court order.  

Seek Help

Navigating the procedures and standard practices of divorce and drafting the required paperwork can be confusing without legal help. It is important to seek professional opinions to make sound decisions as each decision would affect you in the long term. Contact Yeolaw Singapore Divorce Lawyers  (Yeolaw Family Law Specialist) at 62203400 for a detailed discussion on your options.